The Second Amendment, the First and Yelling Fire in a Crowded Theater

Every time I get into an argument with people about the Second Amendment, they inevitably bring up the idea that the rights enshrined within the Bill of Rights have limits. And the one thing they constantly fall back on is the example that “you can’t yell fire in a crowded theater.” That even the First Amendment has limits and so we should allow restrictions on the Second Amendment, too. What they don’t realize is that they have no idea what they’re talking about . . .

The idea that some speech is so dangerous that it isn’t protected under the First Amendment is a concept that comes from the Schenck v. United States supreme court decision of 1919. Schenck was agitating against a draft based on Thirteenth Amendment grounds (the one against involuntary servitude) but did so in a way that advocated for enlisted men to disobey orders. The supreme court ruled that in a time of war, the First Amendment needs to take a backseat to the needs of the country and that Schenck needed to shut up and sit down.

That’s probably not a perspective that 70’s draft dodgers and protesters would appreciate. You know, a lot of the same people who are now advocating for more gun control.

The unanimous decision used the example of shouting fire in a crowded theater, which is where we get the phrase still in use today. However, the ruling was later revised in Brandenburg v. Ohio to mean that the First Amendment didn’t apply ONLY to speech that was promoting an imminent lawless act. And NOT when the speech that may cause harm somewhere down the road (as in Schenck). Note the use of the word “imminent.” So in the later ruling, Shenck would have been OK.

In both of these cases (the second involving a KKK leader and some hate speech on TV, where the court overturned the conviction) the plaintiff had their first amendment rights completely and totally unrestricted until the moment they decided to act. Right up until the point where they opened their yaps and formed the words inciting mutiny or violence, they were presumed innocent and enjoyed their full rights.

There were no censors standing over their heads making sure that they didn’t write anything seditious.

There was no waiting period while their background was checked before being allowed to speak.

There was no requirement to register your newspaper or blog with the government.

There was no government organization that kept a list of approved publications and required a $200 tax to move that instrument of speech between people.

These men were allowed the full exercise of their rights up until the exact moment when they decided to speak in a way that was imminently against the public interest. And, in the Brandenburg decision, even after that point.

When people say that there are restrictions on the First Amendment, they don’t understand what they’re saying. Sure, there are restrictions on what you can say, but there is always the presumption of innocence. It’s only in reaction to an act or speech that those restrictions kick in.

We should have the same kinds of restrictions on the Second Amendment. Just as with the First, you should have the full and complete enjoyment of your rights without any reservations or restrictions until you do something that proves your motives are against the public interest. Like murder, for example.

I should be able to walk down Broadway in New York City with a fully automatic grenade launcher all locked and loaded, and have it be completely legal until the moment I pull the trigger.

Up until the moment that you use a gun for evil purposes, there should be no restrictions on your rights. Just as with the First Amendment.

So I completely agree. The restrictions on the Second Amendment should be identical in nature to those on the First. That you should have complete and total freedom until you prove you aren’t responsible enough to handle that responsibility.

Because “innocent until proven guilty” isn’t just a phrase — it’s supposed to actually mean something in this country.